Towards a Global Debate? UN Human Rights Council Takes on Drones

On Monday, the UN Human Rights Council’s (HRC) expert panel on the use of armed drones and international law, expressed clear consensus around the need for greater transparency and accountability, and that what is most required is respect and implementation of existing law around the use of such weapons.

Politics could, however, be sensed behind the debate over whether the HRC was an appropriate forum to address the use of armed drones. While almost all states, including China, Brazil, and the Netherlands welcomed the council’s engagement, the United States, United Kingdom, Germany, and France made interventions to the discussion objecting to the HRC taking up the issue.

The US rejected the council’s engagement based implicitly on the assertion that its use of drones was based exclusively on an armed conflict/IHL framework, and that the Swiss-International Committee of the Red Cross initiative on IHL compliance was a more appropriate forum for such discussions. The UK stated that while it “accept[ed] its decision to hold this panel,” it did not believe the council should take up particular weapons “on a thematic basis.” Similarly, France stated that the use of armed drones as a weapon is not distinct from the use of other weapons in counter-terrorism context. Germany suggested that such a discussion was more appropriate in arms control fora.

Their interventions did reveal some potentially important differences –and how states may view future UN and HRC engagement. While the US appeared to outright reject the Council’s scrutiny of its own use of drones, which it views as generally outside the bounds of IHRL, its closest European allies seemed ready to accept that drones may have important human rights implications that merit attention, but that doing so in a way that singles out drones as a weapon or tactic was not appropriate.

Critically, both UN Special Rapporteurs took head-on any suggestion that states’ use of drones, even in armed conflict, raised no IHRL concerns and were therefore not “Council business.” As Ben Emmerson, rapporteur on counter terrorism and human rights, put it, even in armed conflict IHL obligations are complemented by states’ IHRL obligations, and the duty to investigate and transparency are “classic human rights law territory.”

The panel — which included the UN Special Rapporteurs on Counter-Terrorism and Human Rights as well as on Extrajudicial Executions, and was organized pursuant to a Pakistan-sponsored resolution — addressed the full range of legal questions raised by armed drones, from the nature and scope of their use in armed conflict against non-state actors to the applicability and requirements of international human rights law (IHRL) with respect to the use of armed drones, and the legal responsibilities of states affect by or hosting lethal drone operations.

In the lead-up, some states voiced concern that Pakistan’s resolution and the holding of such a panel “over-politicized” the issue by implicitly singling out the United States, potentially playing to domestic political interests in Pakistan.

Yet the panelists and most states’ interventions, including Pakistan’s, largely steered clear of specifically calling out the United States or other states’ use of armed drones. Instead, the discussion focused on the general legal issues at stake, the applicability and interaction of international humanitarian law (IHL) and IHRL, the long-term implications for international law, as well as the need to address a well-documented lack of transparency and accountability.

Perhaps surprisingly, on the issue of redress the US stated that “condolence or ex gratia and condolence payments may be available” to victims of drone strikes. This would be a welcome step, and something that human rights organizations have long advocated for. However, US officials have made similar statements before, and yet no one seems to be able to point to a single instance in which the US has provided compensation to civilian victims of drone strikes. While the US has provided the Pakistani government with assistance for a program to compensate victims of terrorism and armed conflict, there is no evidence of this funding going to victims of American drone strikes.

Perhaps the only possible case of compensation to-date were recently reported payments earlier this year to victims of a US drone strike in Yemen, which may have originated with the US government. If so, such covert payments would hardly seem consistent with the legal obligations of transparency and accountability that the panel and other states laid out. Nevertheless, the US’s statement demonstrates how the council’s engagement can get states on the record when it comes to their policies and practices on drone strikes, and potentially open the door to greater transparency and accountability.

Despite concerns of an “over-politicized” discussion, there was significant consensus from panelists and most states around the need for much greater transparency and accountability, both as strict legal obligations, and as practical perquisites to assessing legality. (A coalition of NGOs, including my organization, the Open Society Foundations, echoed these concerns in aletter to the HRC ahead of the panel). While other international fora may be appropriate for addressing the challenges posed by drones, like arms control, as some states suggested, it by no means follows that the HRC is an inappropriate venue for addressing the legal and human rights issues around their use. The challenges posed by states’ use of armed drones are multiple and complex–and making simultaneous use of different international mechanisms, including the UN, may in fact be the most productive, least politicized way forward.

It’s unclear what the council’s next steps will be, but there are several options, including adopting a new resolution, folding drones into a broader resolution (such as that sponsored by Mexico), mandating the UN Office of the High Commissioner for Human Rights to convene expert consultations, and requesting that the Special Rapporteurs report back regularly on states’ compliance.

What is clear from the council’s panel is that there is agreement among most states and experts that addressing the unique risks that drones pose to international law demands an international response. Politics will inevitably influence what shape that takes–and states and civil society would be right to ask what avenues or fora will prove constructive. But political interests also drive how states use drones, and what they disclose. As drones proliferate and use spreads, what’s needed is more UN engagement, not less.